Misuse of Government Computer Can Get You Fired

By on November 30, 2004 in Current Events with 0 Comments

How do you file a successful appeal when the facts are not in your favor?

When an appellant is clearly guilty, many representatives will argue procedural issues and try to avoid an employee getting fired by contending the agency did not properly interpret the law, regulations or an applicable collective bargaining agreement.

That is what happened in this case involving an employee of the Census Bureau. There was no dispute that Neal Bross went to work at about 1:20 a.m. back in September 1999 and used his government computer to download child pornography from the internet.

As a result, the agency fired Bross from his job as a computer specialist. The employee appealed to the Merit Systems Protection Board. The MSPB upheld the agency’s decision to fire the employee.

In this case, the same agency official made the initial proposal to fire the employee and also made the final decision to implement that decision. Bross was removed for conduct unbecoming a government employee and also for misusing government equipment.

The employee contended he should not be fired because he had not ever been subject to disciplinary action before and that there were no victims as a result of his use of child pornography.

The agency concluded that using child pornography was a serious offense and that using the computer to download these images was related to his job as a computer specialist. Moreover, the deciding official concluded Bross had been unable to convince her he would not again repeat his actions and the offense had an impact on the reputation and integrity of the agency.

The decision of the MSPB was then appealed to the Court of Appeals for the Federal Circuit.

Bross argued that having the same person issue the proposal and decision to fire him violated an agreement with the union representing him.

The court noted a clause in the memorandum of understanding with the union that read: “A higher level management official may be the Proposing and Deciding Official for . . . conduct-based actions in precedent-setting cases.”

Bross said that the personnel office made the decision to have one official issue the proposal and the final decision to fire him. But the court concluded the personnel office was serving in an advisory capacity and there was no evidence to the contrary.

And, with regard to the argument that the case was not a precedent-setting case for the agency, the court observed that the deciding official concluded that “there had not been similar offenses [and] . . . it was one of the most serious offenses that the Census Bureau [had] dealt with.”

The decision of the court was also influenced by the fact that Bross had been convicted in federal court for possessing visual images depicting individuals less than 16 years of age engaged as subjects of sexual conduct. As a result of this conviction, Bross was serving three years probation and his probation officer had unlimited access to his work computer under the terms of the probation agreement. The court concluded the agency had a valid concern that this would impact the public’s trust in the agency’s ability to keep private data confidential.

The bottom line: It took more than five years from the time of the original offense, but the decision to fire the employee was upheld and may have finally reached the end of the lengthy appeal line. Bross v. Dept. of Commerce, Court of Appeals for the Federal Circuit, (Case 04-3026), November 22, 2004

© 2016 Ralph R. Smith. All rights reserved. This article may not be reproduced without express written consent from Ralph R. Smith.


About the Author

Ralph Smith has several decades of experience working with federal human resources issues. He has written extensively on a full range of human resources topics in books and newsletters and is a co-founder of two companies and several newsletters onĀ federal human resources.